ORDER
S. Kalyanam, Member (J)
1. This is an application for waiver of pre-deposit of duty of Rs. 33,87,138.43 levied on the petitioners under the order of the Assistant Collector of Central Excise, Visakhapatnam, dated 12-11-1984 and directed by him by order dated 29-5-1989 to pay the demand without any further delay.
2. Shri Chelameswar, the learned counsel for the petitioners, submits that duty has been levied on Low Density Polythene Layflat Tubings and films falling under erstwhile Tariff Item 15-A(2) of the Central Excise Tariff manufactured and cleared for the period 23-10-1977 to 22-10-1982. It was urged that in respect of the goods a show cause notice issued on 17-11-1983 by invoking the longer period of limitation in terms of proviso to Section 11A of the Central Excises & Salt Act, 1944 culminated in an order of adjudication at the hands of the Assistant Collector of C. Ex. dated 12-11-1984 and this was not appealed against. In the meanwhile the Government of India issued a Notification No. 208/84 under Section 11C of the C. Excises & Salt Act, 1944 on 16-10-1984 to the effect that during the period commencing 25th November, 1978 and ending 22nd October, 1982 the whole of duty leviable under the Act including special duties of excise on polythylene films shall not be required to be paid in respect of such polyethylene films on which the duty of excise and special duties of excise were not levied during the said period and in accordance with the practice prevalent. The appellant herein subsequent to this Notification under Section 11C, referred to supra, took out an application before the authorities seeking a declaration that the appellants would not be liable to pay duty for the period covered by the said Notification and the Asstt. Collector of Central Excise, by communication dated 29-5-1989 rejected the appellants’ application stating that in view of the earlier order of the Asstt. Collector of Central Excise dated 12-11-1984 the issue had become final and cannot be reviewed. The appeal against this order was also dismissed under the impugned order of the Collector of Central Excise (Appeals), dated 16-11-1989 out of which the present appeal before the Tribunal arises. Shri Chelameswar, the learned counsel for the appellants, in the above factual background contended that there is always a difference between levy and collection and in view of the statutory Notification 208/84 dated 16-10-1984 under Section 11C of the Act the Department cannot collect the amount or in other words the order fastening a duty liability has become inexecutable by virtue of the said statutory Notification. The learned counsel contended that the inexecutability of the order of the Assistant Collector referred to supra could be pleaded at any time and, therefore, the authorities below should have entertained the appellants’ application and held that the Department cannot under law collect the amount and should have withdrawn the demand. The learned counsel, while arguing the application for waiver of pre-deposit, contended that in view of the appellants’ statutory rights under Notification 208/84 the appellants are not liable to make any payment at all and, therefore, this Tribunal is bound to hear the appellants’ appeal on merits without calling upon the appellants to make any pre-deposit pending appeal in the peculiar facts and circumstances of this case. The learned counsel submitted that the appellants are not going to put forth any plea in regard to financial hardship.
3. Heard Shri Vedantham, the learned D. R.
4. We have carefully considered the submissions made before us. The indisputable fact remains that the competent authority after considering the issue with reference to the duty liability of the appellants, has passed an order on 12-11-1984 fixing the appellants’ duty liability. Admittedly this order passed by the competent authority in exercise of proper jurisdiction was not appealed against and was allowed to become final. The finality of this order cannot be set at naught by the appellant by having recourse to the benefits of Notification 208/84 issued under Section 11C of the Act on 16-10-1984. The levy of duty has become final by virtue of the order dated 12-11-1984 not appealed against. It is also not open to the appellants under law to take out an independent application seeking what may be termed a ‘declaratory relief from the taxing authorities as we do not find any such provision under the Excise Act in regard to the same. Be that as it may, on going through the Notification issued under Section 11C of the Act, we find that it merely states that duty shall not be required to be paid in respect of the goods in question on which duty of excise was not levied during the relevant period. This is a case where duty was levied as is evidenced by the order of the Assistant Collector of Central Excise dated 12-11-1984 in accordance with law and that order also has been allowed to become final by reason of the appellants admittedly not having appealed against the same. In such a situation, a creature of the statute like the Tribunal would not have jurisdiction to sit in judgment over the validity of the said order not appealed against and grant a relief, which is declaratory in nature, as prayed for by the appellants. The learned counsel has made it very clear that the appellants would not be making any pre-deposit and would be resting its case for waiver purely on the question of law pleaded before us. Under Section 35 of the Act pre-deposit is sine qua non for the appellants to exercise the very right of appeal unless this is waived by the Tribunal for the reasons stated thereunder. Since we have already found that the appellants would not be entitled prima facie to seek waiver of pre-deposit by virtue of Notification issued under Section 11C and since the appellants have categorically stated that they are not putting forth any other plea, we dismiss the application as well as the appeal.
